Kempton v. State Ins.

17 N.W. 194, 62 Iowa 83

• Court: Supreme Court of Iowa
• Decided: October 19, 1883
• Status: Published

Opinion

Day, Ch. J.

1. It is insisted that the execution and delivery of the written contract above referred to constituted a sale of the property within the meaning of the policy. That it did not constitute a sale within the meaning of the policy is established, so far as we have been able to discover, by ah unbroken current of authority. In Washington Fire Insurance Company v. Kelly, 32 Md., 421, the policy contained a provision that, “if the property shall be sold or conveyed, or if the policy shall be assigned, without the consent of the company in writing thereon, then this policy shall be null and void.” After contracting the insurance, the assured contracted in writing to sell the premises, and received a payment of $10,000. In determining the effect of this contract upon the policy, the court say: “The provision'of the policy in the Washington Fire Insurance company against the sale or conveyance of the property insured, and against the assignment of the policy without the consent of the insurers, as it imposes a restriction upon the right of disposing of property, should be construed, as any other contract with like provision, with strictness, and nothing less than the absolute sale or conveyance of the property, with all the usual legal ingredients to constitute the transaction as such, or similar complete assignment of the policy, can be considered as sufficient to avoid the policy on that account. * * * . The proviso is a restriction of the sale or conveyance of the property insured, and, when the sale or conveyance is relied upon by the insurers to prevent the recovery for any loss by fire, the sale or conveyance must be made out full and complete. To constitute a sale within the meaning and terms of the proviso, the right to the property sold, and to the possession thereof, must pass from the vendor to the vendee. The mere contract for the sale or conveyance, not divesting the title of the vendor and vesting the same in the vendee, is not a breach of the proviso. A contract to convey the buildings insured at a future day, on payment of the purchase money, and between the time of contract and its consummation, they are destroyed by fire, the vendor being in possession, it is not such an alienation as vacates the policy.” To the same eifect see the following authorities: Hill v. The Cumberland Valley Mutual Protection Co., 59 Pa. St., 474; Browning v. The Home Insurance Co., 71 N. Y., 508; Angelí on Insurance, § 206; Wood on Insurance, § 329, and authorities cited; May on Insurance, § 267, and authorities cited. In our opinion, the contract in question does not avoid the policy.

II. It is insisted that ¡fiaintiff, after the execution of the contract, did not retain an insurable interest in the property. That this position is not tenable,-see the following authorities: Trumbull v. The Portage County Mutual Ins. Company, 12 Ohio, 305; Hill v. Cumberland Valley Mutual Prot. Co., 59 Pa. St., 474, and authorities cited; Wood on Insurance § 330; Flanders on Insurance, pp. 385-6. Insurance Company v. Updegraff, 21 Pa. St., 513; Lazarus v. The Commonwealth Insurance Co., 19 Pick., 81; Perry County Insurance Company v. Stewart, 19 Pa. St., 45. The judgment is

Affirmed.